# West v. Cherokee County Board of County Commissioners

> District Court, E.D. Oklahoma · June 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10385084

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** June 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10385084

## How later opinions describe it (automated extraction)

- discussing as to guns seized from a private residence

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

MILTON MAXWELL WEST, et al., )
)
Plaintiffs, )
vs. ) NO. CIV-19-0004-JH
)
BOARD OF COUNTY )
COMMISSIONERS OF THE COUNTY )
OF CHEROKEE, et al., )
)
Defendants. )

ORDER
In this case, plaintiffs Milton and Lisa West assert claims pursuant to 42 U.S.C. §
1983 for violations of their Second, Fourth, and Fourteenth Amendment rights. They also
assert various state law claims. Defendants are Cherokee County, Oklahoma,1 and
defendants Grant, Bowling, Cluck and Novak, who are deputies with the Cherokee County
Sheriff’s office.
Factual Background
The claims arise out of an incident on April 7, 2017. Plaintiffs’ contention is that
there was a trespasser on their property in rural Cherokee County and that the trespasser
began shooting at Mr. West. It is undisputed that Mrs. West called 911 with a report of

1 Nominally, the defendants include the Board of County Commissioners of Cherokee
County and the sheriff of Cherokee County (formerly Fisher, now Chennault) in his official
capacity. Under Oklahoma law, a county is sued by naming its board of county commissioners.
Girdner v. Board of Com’rs, 227 P.3d 1111, 1112 n.3 (Okla. Civ. App. 2009) (quoting 19 Okla.
Stat. § 4). Further, an official capacity claim under § 1983 against the sheriff is, in substance, a
claim against the county. Lopez v. LeMaster, 172 F.3d 756, 762 (10th Cir. 1999). Therefore, this
order refers to claims against those defendants as claims against Cherokee County.
gunshots outside her home, that her husband was armed and outside, and requested
assistance. Deputies Grant, Bowling, Cluck and Novak were dispatched to the property.
When the deputies arrived, Mr. West was outside the West home, with a .45 caliber

handgun, in the hot tub. The deputies were advised by dispatch that Mr. West had taken
cover there because he was being shot at. They were also advised that Mrs. West had told
her husband that the deputies had arrived and were coming up the driveway. The deputies
came up the driveway with the emergency lights of their vehicles activated.
It is undisputed that shots were fired in the direction of the deputies as they came

toward the house. There is a dispute, however, as to who was doing the shooting. The
officers’ contention is that, while none of them actually saw Mr. West shoot at them, the
shots appeared to be coming from the direction of the hot tub. Mr. West contends he did
not shoot at the officers, but that the trespasser did.
The deputies communicated with Mr. West via dispatch and Mrs. West, or with him

directly via phone, for 15-20 minutes and eventually persuaded him to leave the hot tub
and surrender. The officers then searched the area around the hot tub. They found the
handgun with one round chambered and two rounds in the magazine. They located spent
shell casings from the .45 on the left side of the hot tub relative to where Mr. West had
been sitting. They also conducted a limited search of the surrounding area and found no

evidence of a trespasser/shooter.
The deputies took Mr. West into custody based on a charge of assault and battery
with a deadly weapon. After a phone discussion between the deputies and Undersheriff
Chennault, they decided the best course of action would be to enter the West home and
seize any guns found there. Three of the deputies entered the house, secured a weapon that
was in plain view, and then searched for and seized a number of other firearms. Defendants
contend Mrs. West consented to the entry and seizure. Plaintiffs dispute that.

Mr. West was booked on the assault and battery charge and bonded out. He
commenced efforts to have the sheriff’s office return his firearms but was advised they
could not be returned without permission from the District Attorney’s office.
For reasons not clear from the current record, Mr. West was not formally charged
with the assault and battery offense until January 19, 2018. In the meantime, another

shooting incident occurred at the West property, on April 23, 2017. Mr. West experienced
a gunshot wound to his arm, with the parties apparently disputing whether Mr. West was
shot by an intruder or shot himself.
Mr. West had further contacts with the authorities via counsel and filed with the
County a notice of tort claim under the Oklahoma Governmental Tort Claims Act. The

criminal charges against Mr. West were eventually dismissed in July 2018. In August
2018, Mr. West obtained a court order for the return of his guns and they were returned to
him in September. In early 2019, this case was filed.
Discussion
Defendants have moved for summary judgment as to all claims. Summary judgment

is appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine
dispute as to a material fact exists when the evidence, construed in the light most favorable
to the non-moving party, is such that a reasonable jury could return a verdict for the non-
moving party.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir.
2011) (quotations and citation omitted). When evaluating a summary judgment motion
based on the defense of qualified immunity, the court must “engage in a two-pronged

inquiry.” Tolan v. Cotton, 572 U.S. 650, 655 (2014). Taking the facts in the light most
favorable to plaintiff, the court must determine whether the defendants’ conduct violated a
constitutional right. Id. at 655-56. Also, the court must determine “whether the right in
question was clearly established at the time of the violation.” Id. at 656 (quotations and
citation omitted). Finally, the Supreme Court has also emphasized in such cases “the

importance of drawing inferences in favor of the nonmovant.” Id. at 657.
The complaint does not clearly delineate the specific claims plaintiffs are asserting,
but from the parties’ submissions they appear to be as set out below.
1. False arrest claim - § 1983.
Mr. West contends the deputies violated his Fourth Amendment rights by arresting

him without sufficient justification. He asserts a parallel claim for false arrest under state
law, based on the same circumstances.
The Fourth Amendment safeguards “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
However, “[i]f an officer has probable cause to believe that an individual has committed a

. . . criminal offense in his presence, he may, without violating the Fourth Amendment,
arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). “Probable
cause exists if facts and circumstances within the arresting officer’s knowledge and of
which he or she has reasonable trustworthy information are sufficient to lead a prudent
person to believe that the arrestee has committed or is committing an offense.” A.M. v.
Holmes, 830 F.3d 1123, 1138 (10th Cir. 2016) (quotations and citations omitted). “When
assessing whether an officer had probable cause to arrest an individual, courts ‘examine

the events leading up to the arrest, and then decide whether these historical facts viewed
from the standpoint of an objectively reasonable police officer, amount to probable cause.’”
Id. (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003) (internal quotations and citation
omitted)).
Here, the court concludes the undisputed facts establish that the officers had

probable cause to arrest Mr. West for assault and battery with a deadly weapon. The
deputies knew that Mr. West was outside his home with a firearm, situated in a hot tub.
When they arrived on scene, with emergency lights activated, there were shots fired in their
direction from what they thought was the vicinity of the hot tub. Mr. West refused to
surrender immediately, which is consistent with him being concerned about being shot at

by an intruder but also with the conclusion the officers drew — that he was reluctant to
surrender after shooting at them. After detaining Mr. West, the officers located his
handgun with a bullet in the chamber and two more remaining in the magazine. Spent shell
casings were also found in a location that the deputies believed indicated that Mr. West
had been firing in their direction.2 The deputies also searched the area where Mr. West

2 Plaintiffs dispute whether the location of the shell casings actually proves that Mr. West
shot at the officers, but they do not dispute the location of the casings relative to the hot tub and
the officer’s position. A reasonable officer could draw the conclusion that the location of the
casings indicated shots by Mr. West at them.
reported the unknown intruder had been but found no evidence of anyone present in, or
firing a weapon from, that area.3 None of these facts, taken individually or together, prove
that Mr. West actually shot at the police officers or that he committed the crime of assault

and battery with a deadly weapon. They do, however, at least establish probable cause to
believe that Mr. West had committed the offense. As a result, the arrest of Mr. West was
not improper under the Fourth Amendment. Defendants’ motions will be granted as to the
Fourth Amendment arrest claim.4
2. Wrongful search claim - § 1983.

Plaintiffs object to the search of their home, contending that the defendants entered
without a warrant and without consent. It is undisputed that the officers did not have a
warrant.
“With few exceptions, the question whether a warrantless search of a home is
reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533

U.S. 27, 31 (2001) (citations omitted). “Absent consent or exigent circumstances, police
may not enter a citizen’s residence without a warrant.” United States v. Carter, 360 F.3d

3 As plaintiffs note, the fact that defendants could not locate shell casings or other evidence
in a wooded area after dark has limited probative value, but it is nonetheless some evidence that
Mr. West’s explanation was false.
4 Even if the court were to conclude something less than probable cause existed, it would
nonetheless enter judgment for the officers as a matter of qualified immunity. An arresting officer
is entitled to immunity if a reasonable officer could have believed that probable cause existed. See
Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012); Romero v. Fay, 45 F.3d 1472, 1476 (10th
Cir. 1995)
1235, 1241 (10th Cir. 2004) (quotations and citation omitted). Defendants contend that
they entered the West residence with Mrs. West’s consent.
Voluntary consent to a search has two elements: “(1) the law enforcement officers

must receive either express or implied consent, and (2) that consent must be freely and
voluntarily given.” United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (citing
Florida v. Royer, 460 U.S. 491, 497 (1983)). Implied consent would exist if Mrs. West
“said or did something that permitted the [deputies] to form a reasonable belief that [she]
was authorizing them to follow [her] into [her] residence.” Id. at 1321; see, also, United

States v. Coulter, 461 Fed. Appx. 763, 766 (10th Cir. 2012) (“[A] reasonable person would
have understood by Ms. Silva’s action that the officer could follow her into the residence.”
(quotations and citation omitted)). “In determining the voluntariness of consent, the Fourth
Amendment requires that ‘a consent not be coerced, by explicit or implicit means, by
implied threat or covert force.’” Jones, 701 F.3d at 1317-18 (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 228 (1973)).
Mrs. West testified that the deputies walked into her home as she went to turn on
lights at their request. Doc. # 83-8, p. 5 (“I was busy turning on the lights and they walked
in. That’s all, there was nothing to it, they just walked in.”). But her testimony is also
clear that she did not object at the time to them being there — asked whether she objected

or wanted them to stay out, she testified “Not … at that point.” [Doc. #83-8, at 99-100].
There is no indication the deputies coerced Mrs. West verbally or otherwise. The court
therefore concludes the undisputed facts show implied consent by Mrs. West to the
deputies’ initial entry into the home, and there was no Fourth Amendment violation from
the officers entering the home.
There is, however, a dispute of material fact as to whether Mrs. West consented to

any further search after the initial entry. Her just-quoted testimony suggests that, at some
point, she did object to them being there. Her testimony also suggests that her identification
of the location of the other guns was not purely voluntary on her part but was in response
to the officer’s suggestion that he needed to know where the other guns were for officer
safety. “When law enforcement officers rely upon consent to justify a warrantless search,

the scope of the consent determines the permissible scope of the search.” United States v.
Pikyavit, 527 F.3d 1126, 1130 (10th Cir. 2008) (quotations and citations omitted). An
“objective reasonableness test is applied to measure the scope of a person’s consent.” Id.
(quotations and citations omitted). The court must determine “what the typical reasonable
person would have understood to be the scope of his or her consent under the

circumstances.” Id. (quotations and citations omitted). The evidence, considered in the
light most favorable to plaintiffs, supports a permissible inference that Mrs. West did not
consent to the broader search of her house and that the officer’s conduct exceeded the scope
of what she had consented to. As a result, the court concludes there was no constitutional
violation by reason of the officer’s initial entry into the house. There is, however, a

justiciable question as to whether their conduct exceeded the scope of what was authorized
by Mrs. West’s consent.
The presence of that question does not end the inquiry. The defendant deputies have
also grounded their motion on the defense of qualified immunity. Qualified immunity
shields a government official “from liability for civil damages insofar as their conduct does
not violate clearly established [federal] statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982).

When a defendant asserts the defense of qualified immunity in a motion for summary
judgment, the burden shifts to the plaintiff to establish that the defendant violated a
constitutional right and that the constitutional right was clearly established. Price-
Cornelison v. Brooks, 524 F.3d 1103, 1108 (10th Cir. 2008). As discussed above,
plaintiffs’ evidence is sufficient to create a justiciable dispute as to whether the scope of

the search violated their rights. So, the question becomes whether they have shown the
pertinent right to be clearly established.
In order for a right to be clearly established, there must be a Supreme Court or Tenth
Circuit decision on the pertinent point, or there must be clearly established weight of
authority from other courts. Id. Further, the inquiry must focus on the specific facts of

the particular case, as opposed to relying too broadly on general principles. Id. The
Supreme Court “has repeatedly told courts not to define clearly established law at a high
level of generality.” City of Escondido, Cal. v. Emmons, 202 S. Ct. 500, 503 (2019)
(quotations and citation omitted).
Here, at least as to the question of the scope of this particular search, plaintiffs have

not attempted to identify authority which clearly establishes the pertinent violation.
Confronted with a situation where they thought they had been shot at by someone living in
a house, having at least the tacit consent of one resident to enter the house, having then
seen one gun and learned of others, it is not obvious that the deputies’ further search for
weapons was a clearly established constitutional violation. In any event, the burden to
make the necessary showing is on the plaintiff, and they have not done so. Qualified
immunity bars any remaining claim against the defendant deputies based on the scope of

the search.
The defense of qualified immunity applies only to the defendants in their individual
capacities and does not bar a claim against the County if one otherwise exists. For the
county to be liable for any constitutional violation found to exist, the violation must have
resulted from an “action pursuant to official policy of some nature” of the county. Monell

v. Dep’t of Soc. Servs. Of the City of New York, 436 U.S. 658, 691 (1978). Here, at least
as to the scope of search claim, plaintiffs have not shown an arguable basis for county
liability.
In sum, the initial entry into the West residence was with implied consent. To the
extent that any issue exists as to the scope of the succeeding search, the defendant deputies

are protected from liability by the defense of qualified immunity. No basis for county
liability has been shown for any violation which occurred by reason of the scope of the
search. Defendants’ motions will therefore be granted as to plaintiffs’ Fourth Amendment
claim for unreasonable search.
3. Wrongful seizure claim - § 1983.

Plaintiffs contend that the seizure of their other guns (i.e. other than the one found
near the hot tub) violated both their Second Amendment and Fourth Amendment rights.
With respect to plaintiffs’ claims based on the Second Amendment, the court
concludes no basis for claim is present here. While the full extent of the rights protected
by the Second Amendment has not been spelled out by the Supreme Court, other courts
have concluded that a police officer’s lawful seizure of particular firearms does not violate
the Second Amendment. See, e.g., Rodgers v. Knight, 781 F.3d 932, 941-42 (8th Cir.

2015) (“Lawful seizure and retention of firearms, however, does not violate the Second
Amendment. Indeed, this court has held that even the unlawful retention of specific
firearms does not violate the Second Amendment, because the seizure of one firearm does
not prohibit the owner from retaining or acquiring other firearms.” (citation omitted));
Meeks v. Larsen, 611 Fed. Appx. 277, 286 (6th Cir. 2015). The present circumstances do

not involve a situation where some court or other governmental entity has sought to
preclude plaintiffs from owning guns in general. Rather, the question here is the propriety
of the seizure of the guns in the West home. That question is determined by the Fourth,
rather than the Second, Amendment.
With respect to plaintiffs’ Fourth Amendment seizure claim, defendants contend

they are entitled to judgment on the basis that Mrs. West consented to the seizure and on
the basis of a sort of “reasonable under the circumstances” standard, which they tie to an
Oklahoma seizure statute. They also make passing reference to exigent circumstances.
In general, a person’s property may not be seized without a warrant. Certain
recognized exceptions exist to the warrant requirement. Items in plain view that may be

instruments or fruits of illegal activity may be seized. United States v. Tucker, 305 F.3d
1193, 1202 (10th Cir. 2002). Exigent circumstances may also justify a warrantless seizure.
United States v. Gordon, 741 F.3d 64, 69 (10th Cir. 2014).
Applying these principles here, the court concludes the seizure of the gun possessed
by Mr. West while in the hot tub was proper. He was arrested for assault and battery with
a dangerous weapon, and it was proper to seize the weapon thought to have been used in

the offense. Washington v. Chrisman, 455 U.S. 1, 5-6 (1982). Similarly, the gun in plain
sight of the officers after they entered the West residence with Mrs. West’s consent was
potentially a gun used in connection with the crime charged. No constitutional violation is
present as to the seizure of either of those guns.
The court concludes, however, that plaintiffs’ evidence is sufficient to establish a

justiciable question as to whether a constitutional violation was committed when the
officers seized the other guns discovered throughout the house. As noted above, there is a
dispute of material fact as to the extent of what Mrs. West consented to. That dispute
precludes summary judgment for defendants on the basis of consent.
Defendants reliance on an Oklahoma statute to show reasonableness of the seizure

under the circumstances is also unpersuasive. Of course, an Oklahoma statute cannot
legalize conduct that is otherwise unconstitutional and the general principle is that the
Fourth Amendment only “permits a law enforcement officer to seize what clearly is
incriminating evidence or contraband when it is discovered in a place where the officer has
a right to be.” Id. But even aside from that, the statute itself does not appear to apply to

the circumstances here. The statute, 21 Okla. Stat. § 1738(B)(6), permits the seizure and
forfeiture of a “weapon possessed, used or available for use in any manner during the
commission of a felony . . . or any firearm possessed by a convicted felon.” 21 Okla. Stat.
1738(B)(6). By the time the deputies entered the West home, Mr. West had been arrested
and was in custody. There was no ongoing offense. There was no apparent basis for
concluding the seized weapons (beyond the two referenced above) were used in the
commission of the offense or were evidence of it. It appears the officers seized the weapons

out of concern that Mr. West might use the weapons for some improper purpose in the
future. As such, that concern potentially implicates the community caretaking exception
to the warrant requirement, but defendants have not attempted to justify the seizure on that
basis. See United States v. Neugin, 958 F.3d 924 (10th Cir. 2020) (discussing generally)
and Caniglia v. Strom, 953 F.3d 112 (1st Cir. 2020) (discussing as to guns seized from a

private residence).
In any event, the court concludes a genuine dispute of material fact exists as to
whether the officers’ seizure of the other guns violated plaintiffs’ rights.
As with the search claim, the defendant deputies have asserted the defense of
qualified immunity and the same general principles apply here. “[B]y asserting the

qualified-immunity defense, [defendants] triggered a well-settled twofold burden that
[plaintiffs were] compelled to shoulder.” Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir.
2015). Plaintiffs must not only “rebut the [defendants’] no-constitutional-violation
arguments, but [they] also [have] to demonstrate that any constitutional violation was
grounded in then-extant clearly established law.” Id. (citation omitted). Plaintiffs have not

satisfied this burden as to the second element. Plaintiffs rely on United States v. Davis,
290 F.3d 1239 (10th Cir. 2002) for the principle that reasonable officers could not have
concluded exigent circumstances existed sufficient to search plaintiffs’ home in the
circumstances presented. But Davis did not involve circumstances like those here, where,
as discussed above, the officers entered the house with the tacit consent of an occupant and
discovered an additional weapon in plain view. The authorities plaintiffs cite fall short of
establishing clearly established law that, in such circumstances, officers must avoid

checking for other weapons. The court concludes the defendant deputies are entitled to
summary judgment based on qualified immunity.5
The court’s conclusion is different as to the seizure claim against the County. As
discussed above, a county or municipality is not strictly or vicariously liable for the actions
of its employees, and liability can attach only when the municipality’s policy, or custom

and practice, is the moving force behind the violation. Monell, supra. 436 U.S. at 691.
The necessary policy or custom may be shown in various ways:
A municipal policy or custom may take the form of (1)
a formal regulation or policy statement; (2) an informal
custom amounting to a widespread practice that,
although not authorized by written law or express
municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3)
the decisions of employees with final policymaking
authority; (4) the ratification by such final policymakers
of the decision — and the basis for them — of
subordinates to whom authority was delegated subject
to these policymaker’s review and approval; or (5) the
failure to adequately train or supervise employees, so
long as that failure results from deliberate indifference
to the injuries that may be caused.

Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010).

5 Deputy Novak is entitled to summary judgment on the seizure claim for a more
fundamental reason. It is undisputed that he was not in the house and did not participate in the
seizure.
To the extent that plaintiffs asserts County liability based on failure to train or
supervise, the County’s motion will be granted. Plaintiffs’ conclusory arguments as to the
County defendants’ failure to train does not raise a genuine dispute of material fact in the

face of defendants’ evidence regarding the training the deputies received. Likewise,
plaintiffs have failed to present evidence which, viewed in the light most favorable to them,
shows the County was deliberately indifferent to a substantial risk of the violation of
constitutional rights due to the supervision of deputies or the development of policies. That
supervision and policy development may have come more from Chennault than from

Fisher, but the evidence does not support an inference that policy and supervision were so
lacking as to be a basis for county liability.
The evidence does, though, indicate that Undersheriff Chennault authorized the
decision to seize the “other” weapons. In Oklahoma, the county sheriff is generally viewed
as the final policymaker for the sheriff’s office, but there is evidence here from which a

jury could conclude that then-Sheriff Fisher delegated policymaking in this area to
Chennault and that he ratified those policies. Fisher delegated authority to draft department
policies and procedures to then-Undersheriff Chennault. Doc. # 107-3, p. 3. Chennault
was also generally responsible for the training deputies regarding department policies and
procedures. Id. at 5. And Chennault testified that the deputies acted reasonably in

searching the West residence and seizing the firearms collection, even though there was no
pressing need for deputies to enter the home that evening because Mr. West had been
arrested. Id. at 4, 9. He believed that actions were reasonable to “avoid a future crime.”
Id. at 10.
The court concludes that a question of fact remains as to whether a Cherokee County
policy, custom, or practice exists which led to the potential Fourth Amendment seizure
violation addressed above. There is evidence that the deputies executed the seizure based

on policy ratified by the County policymaker. As a result, the County is potentially liable
for any seizure violation ultimately established by plaintiffs. The motion of the County
will be denied as to the seizure claim.
4. Fourteenth Amendment Due Process Claim.
Plaintiffs allege that defendants violated their Fourteenth Amendment due process

rights by seizing and failing to return their firearms in a reasonable manner. With respect
to the Due Process claims against the individual deputies, summary judgment will be
granted in the deputies’ favor. Plaintiffs have presented no evidence which supports an
inference that the non-return of the guns was due to the deputy’s actions. Plaintiffs’ efforts
appear to have been directed to the Sheriff’s and District Attorney’s offices.

The same result follows as to the Due Process claim against the County, although
for different reasons. Intentional deprivation of property may violate an individual’s
Fourteenth Amendment procedural due process rights, if that individual is denied a
meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 531 (1984). The
Supreme Court has concluded that post-deprivation state-law remedies are generally

sufficient to satisfy the demands of due process.” City of West Covina v. Perkins, 525 U.S.
234, 241 (1999). Here, plaintiffs sought and eventually received a state court order for the
return of the firearms. The court concludes this was sufficient to satisfy the demands of
due process. Plaintiffs object that they were forced to hire an attorney and obtain a court
order for the return of the firearm collection, but that alone is not a basis for concluding
they had no meaningful remedy. Pursuant to Oklahoma’s forfeiture statute, notice of
seizure and intended forfeiture of property must be provided to all owners and parties in

interest who may then challenge the seizure and forfeiture in court. 21 Okla. Stat. § 1738.
Plaintiffs have not alleged or presented any evidence that they were required to do anything
other than follow state-law remedies for the recovery of their property. Accordingly,
defendants are entitled to summary judgment on the Due Process claim.
5. State law claims.

Plaintiffs’ complaint appears to plausibly allege four claims against defendants
arising under state law: false arrest, defamation/false light invasion of privacy, and for
violations of plaintiffs’ rights under the Oklahoma Constitution to be free from
unreasonable searches and seizures (Art. II, Sec. 30) and to keep and bear arms. (Art. II,
Sec. 26).6

With respect to the false arrest claim, the elements of the state law claim
substantially parallel those applicable to the federal false arrest claim discussed above.
Delong v. State, 956 P.2d 937, 938-39 (Okla. Civ. App. 1998). In particular, the existence
of probable cause is a “complete defense” to liability. Roberts v. Goodner’s Wholesale
Foods Inc., 50 P.3d 1148, 1152 (Okla. Civ. App. 2002) (citing Lewis v. Crystal Gas Co.,

6 It is not clear from the cursory reference in the complaint that plaintiffs are even asserting
§ 1983 claims based on negligent hiring, training, or supervision. However, to the extent they are,
they have failed to present evidence sufficient to create a material fact issue.
532 P.2d 431, 433 (Okla. 1975). As noted above as to the parallel federal claim, the
undisputed facts establish that the officers had probable cause to arrest Mr. West.
As to the defamation/false light claim, defendants contend the notice of tort claim

given by plaintiffs to the County pursuant to the OGTCA made no mention of such a claim.
Under the OGTCA, notice is a “mandatory prerequisite jurisdictional requirement to filing
a claim for tort damages.” Hall v. GEO Group, Inc., 324 P.3d 399, 400 (Okla. 2014)
(citations omitted). Plaintiffs counter that they are not required to articulate particular
theories of recovery in their notice, and that appears true, but the notice in question [Doc.

No. 83-26] did not even mention circumstances that might arguably be the basis for such a
claim. There is zero suggestion in the notice that any relief was sought beyond recovery
for the arrest, search and seizure claims. The court concludes the undisputed facts show
plaintiffs to have failed to comply with the necessary preconditions to recovery set out in
the OGTCA.7

As to the state constitutional claim based on Art. II, Sec. 26, the right to keep and
bear arms, the court has considerable doubt whether the Oklahoma courts would recognize
a private right of action as to that section (as opposed to its use as a defense to some state-
sponsored effort to restrict generally a person’s right to bear arms). The remedy recognized
in Bosh v. Cherokee Co. Bldg. Auth., 305 P.3d 994 (Okla. 2013) involved a claim of excess

force. While the Oklahoma Supreme Court appears not to have squarely addressed the

7 The court also notes that plaintiffs have failed to present evidence that any defendant
published any false or defamatory statements or any statements that placed plaintiffs in a false
light.
issue, this and other courts have concluded that Bosh (even without the further limitations
now existing due to Barrios) was substantially limited to the excess force situation and did
not have the effect of creating a private right of action for every arguable violation of the

Oklahoma Constitution. Earles v. Cleveland, 418 F.Supp.3d 879, 890-91 (W.D. Okla.
2019); Stuart v. City of Custer City, No. CIV-18-471, 2018 WL 5260047, at *5 (W.D.
Okla. Oct. 22, 2018). Further, it did not recognize, even as to claims clearly within its
rationale, claims against individual employees, as opposed to the governmental entity
itself. See Maher v. Oklahoma, 165 F.Supp.3d 1089, 1093 n.3 (W.D. Okla. 2016).

In sum, the court concludes the Oklahoma courts, when confronted with the issue,
are likely to apply Art. II, Sec. 26, in a way parallel to that of the federal Second
Amendment, and with the same result as discussed above. Summary judgment for
defendants will therefore be granted as to the Art. II, Sec. 26 claim.
The legal status of plaintiffs’ constitutional claim under Okla. Const. Art. II, Sec.

30, relating to unreasonable searches and seizures, is less clear. It may be that the
Oklahoma courts will recognize a private right of action for violation of this section, akin
to the federal Bivens remedy. See Tuffy’s, Inc. v. City of Oklahoma City, 212 P.3d 1158,
1167 (Okla. 2009) (“[L]iability exists for acts that can be described as abuses of lawful
power by officers.”). However, rather than attempting that analysis in the absence of more

complete briefing from the parties, and as plaintiffs’ OGTCA notice arguably embraced
the arrest and seizure claims, the court concludes for present purposes that defendants are
not entitled to summary judgment on state search and seizure claims under the Oklahoma
Constitution. It does, however, conclude that the reach of those claims is limited to the
same extent as the parallel federal claims discussed above.
Conclusion
For the reasons stated, the motion for summary judgment of the defendant deputies
[Doc. # 84] is GRANTED. The motion for summary judgment of Cherokee County [Doc.
# 83] is GRANTED in part and DENIED in part. The motion is DENIED as to the Fourth
Amendment claim for unlawful seizure of the firearm collection and the parallel state
constitutional claim; the motion is GRANTED as to all other claims. Defendants’ motion
to stay [Doc. #118] is STRICKEN as MOOT. Further, in light of the docket uncertainties
resulting from the COVID-19 pandemic and the anticipated transfer of this case to another
judge of the court, the current scheduling order [Doc. # 93] is STRICKEN.
IT ISSO ORDERED.
Dated this 18" day of June, 2020.
iL

~D STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10385084. Public record. Not legal advice.